Adrian Francis appeared in Calderdale MBC v AB, Daniel Lumb and AnB [2021] EWCOP 56

Adrian Francis appeared in Calderdale MBC v AB, Daniel Lumb and AnB [2021] EWCOP 56 in which Senior Judge Hilder had to grapple with the issue of whether a Property and Affairs deputy appointed on a standard order was authorised under the Mental Capacity Act 2005 to make decisions about the adult’s needs for care and support.

The brief facts of the matter were that Daniel Lumb was appointed as AB’s property and affairs deputy by way of a standard order in 2019. AB’s brother in law DB receives a direct payment from the applicant local authority to arrange AB’s care and support needs. DB uses this direct payment to fund a package of care provided by AB’s siblings. The local authority made an application seeking a declaration as to whether a deputy acting on a standard deputyship order was a person authorised under the Mental Capacity Act 2005 to make decisions about the adult’s needs for care and support. The local authority advanced the position that the power to decide whom should receive the direct payment remained with the local authority.

Where a person does not have capacity to request the direct payment an authorised person may do so. Section 32(4) of the Care Act 2014 says that a person is an authorised person if the person is authorised under the Mental Capacity Act 2005 to make decisions about the adult’s needs for care and support.

If there is an authorised person, no one else may request the direct payments without the authorised person’s consent. The issue being whether AB’s deputy was the authorised person for AB within the meaning of s32 Care Act 2014. Hence if the deputy was the authorised person for AB. DB would not be able to manage direct payments for AB without the deputy’s consent. Conversely if the deputy was not authorised to make decisions about the adult’s needs for care and support, any decision as to the direct payment would remain with the local authority to determine whether the person seeking direct payments was a suitable person who would act in the adult’s best interests in arranging care and support and is capable of doing so.

The court determined that the authority granted to the deputy by way of a standard deputyship order does not include authority to make decisions about AB’s needs for care and support within the meaning of section 32(4)(a) of The Care Act 2014. Therefore the deputy was not an authorised person for the purposes of receiving a direct payment and discretion to decide who remained a suitable person to receive a direct payment remained with the local authority.

https://www.bailii.org/ew/cases/EWCOP/2021/56.html